November 15, 2012

The Military’s Laws on Adultery Make No Sense

In his press conference today, President Obama thanked General David Petraeus for his service to the country less than a week after he accepted his resignation as head of the CIA. It was the least that Petraeus was owed. But Obama's work isn't done yet—not while another military officer, General John Allen, is still being scrutinized for a possible extramarital relationship. The President owes it to the country to address a nagging underlying issue that has contributed to this week's needless national hyperventilation: the current state of military law pertaining to adultery.

The Uniform Code of Military Justice clearly needs to be rethought. As it stands, it blurs what should be a clear line between acts of misconduct that affects a high-ranking officer’s family and those that weaken his or her ability to lead others.

One relevant section, Article 133, reads as follows: “Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.” And here’s Article 134, which bears directly on the Petraeus case, at least in principle:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of the court.

In the cases of Avrech v. Secretary of the Navy and Parker v. Levy, both decided in 1974, the Supreme Court rejected challenges brought against this language on the grounds that it is vague and overbroad—even though it manifestly is both.

Even worse, Article 2 of the UCMJ extends its jurisdiction to include “retired members of a regular component of the armed forces who are entitled to pay.” Because Petraeus is entitled to a pension, he falls under the Code. The bottom line: his private conduct is potentially subject to legal scrutiny for the rest of his life. Even if no prudent military lawyer would bring such a case, this legal framework shaped the environment in which Petraeus tendered his resignation.

This is madness. It is easy to imagine circumstances in which adultery might well undermine the ability to command. But throughout our history, leading generals—in all probability including Dwight Eisenhower while he was Supreme Commander of the Allied Forces—have engaged in adulterous affairs. Surely the burden should be on the military to demonstrate a concrete, functional, operational link between the adulterous conduct and military discipline. In the absence of such a showing, the simple fact of adultery should not suffice, and the UCMJ should make that crystal-clear.

At present, it does not. According to the manual that guides the application of the military code, “To constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting [my italics] … ”

What does that final phrase mean? Answer: “Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open and notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem.”

To be sure, the text continues, “adulterous conduct that is private and discreet may not be service discrediting by this standard.” But in today’s information environment, discretion rarely suffices to prevent private conduct from becoming public knowledge—all the more so in the case of well-known figures such as David Petraeus. In practice, then, there is no area of private life that cannot come under the jurisdiction of the UCMJ.

All this transpires under the aegis of language that has been part of our military law since 1775and that directly traces to British sources from the late seventeenth century. Can anyone seriously argue that public norms have remained unchanged for the past three hundred years? The U. S. military is not—and should not be treated as—a hermetically sealed world. It is part of our society. Adultery is not per se a disqualification for the presidency (Roosevelt, Eisenhower, Kennedy, Clinton); nor is it more generally for positions of military and civilian leadership. It’s time to update our military code, not to subject our leaders to the dead hand of the past.

To the extent that the extant military code affected Petraeus’s decision to tender his resignation, or Obama's decision to accept it, it contributed to a result that is inconsistent with the country’s best interests. As the president reaffirmed as his November 14 press conference, there is no evidence that the former CIA director’s conduct breached national security. If further inquiry establishes that Petraeus’s conduct either led to a security lapse, such as the dissemination of classified information, or posed an unacceptable risk of so doing, that would be a different matter. But based on what we now know, the CIA has been deprived—needlessly—of the services of an experienced and skilled leader, in no small measure because of a vague and antiquated legal text.